Daniel to step down, new chief disciplary counsel sought

The chief disciplinary counsel of the Court of the Judiciary, Steve Daniel, will step down when his contract ends on June 30. He has agreed to stay in this role to complete his pending cases before the Court of the Judiciary. "We are grateful for Steve Daniel's diligent efforts to further the ethical conduct of judges in Tennessee," said Don Ash, presiding judge of the Court of the Judiciary.

The Court of the Judiciary, the body charged with overseeing the ethical conduct of judges, is seeking applicants for this position, which is responsible for reviewing and screening complaints against judges, conducting preliminary and full investigations of judges, making recommendations to the Court's investigative panel and prosecuting formal charges.

Find out more from the AOC

TODAY'S OPINIONS
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WALTER JESSEE BRUMIT v. STEFANIE LYNNE BRUMIT DURHAM

Court: TCA

Attorneys:

G.P. Gaby, Greeneville, Tennessee, for the Appellant, Walter Jessee Brumit.

No appearance by, or on behalf of, the Appellee, Stefanie Lynne Brumit Durham.

Judge: SWINEY

Walter Jessee Brumit ("Husband") and Stefanie Lynne Brumit Durham ("Wife") were divorced in 1993. The parties had one minor child, and Husband was ordered to pay $1,500 per month in child support. From that $1,500, Wife was ordered to place $300 each month into an educational trust account for the child's benefit. Husband also was required to match that $300 payment. In 2008, Husband filed a motion for contempt. According to Husband, Wife was $6,600 behind in the payments she was required to make into the child's trust account. Wife responded to the motion and admitted that she had fallen $6,600 behind in payments. Wife claimed, however, that she was behind because of financial problems, even though she was caught up by the time she filed her response to the motion. Before any hearing took place, the Trial Court sua sponte accepted Wife's excuse as to the reason she was behind in the payments, determined that Husband's motives for filing the motion for contempt were improper, and dismissed the motion in its entirety, taxing the costs to Husband. Husband appeals. We vacate the Trial Court's judgment and remand this case for a hearing on the merits of Husband's motion for contempt. We also agree with Husband that a new trial judge should be assigned to this case.

http://www.tba2.org/tba_files/TCA/2010/brumitw_030910.pdf


SAUNDRA J. COUNCE, RN v. ASCENSION HEALTH ET AL.

Court: TCA

Attorneys:

Jeffery C. Grass, Plano, Texas, Pro Hac Vice, and Matthew Brothers, Nashville, Tennessee, for the appellant, Saundra J. Counce.

Luther Wright, Jr., and Joycelyn A. Stevenson, Nashville, Tennessee for the appellees, Ascension Health, Seton Corporation, Saint Thomas Health Services and Baptist Hospital.

Judge: CLEMENT

The plaintiff, formerly an at-will employee of Baptist Hospital, filed this action asserting that she was wrongfully terminated from her employment. She asserted twelve claims, inter alia, retaliatory discharge, age and sex discrimination, sexual harassment, violation of wage and hour laws, and violation of the Americans with Disabilities Act. The trial court summarily dismissed all of the claims. We affirm.

http://www.tba2.org/tba_files/TCA/2010/counces_030910.pdf


STATE OF TENNESSEE v. RAYFIELD MARTIN, JR.

Court: TCCA

Attorneys:

Ardena J. Garth, District Public Defender, and Richard Kenneth Mabee, Assistant Public Defender, for the appellant, Rayfield Martin, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; William H. Cox, III, District Attorney General; and William H. Hall, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Rayfield Martin, Jr., appeals the Hamilton County Criminal Court's revocation of probation for his various convictions upon guilty pleas for two offenses of possession of less than one-half gram cocaine with intent to sell, a Class C felony; criminal simulation, a Class E felony; theft of property valued over $500, a Class E felony; and burglary, a Class E felony. On December 14, 2006, the Defendant was sentenced to an effective six years' probation for the possession and criminal simulation convictions. On May 23, 2007, he was sentenced to an effective two years' probation for the theft and burglary convictions, to be served consecutively to the convictions for possession. The Defendant contends that the trial court erred by revoking his probation and by not ordering alternative sentencing. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/martinr_030910.pdf


GARY S. MAYES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Gary S. Mayes.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Leland Price, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Gary S. Mayes, appeals from the Knox County Criminal Court's denial of his petition for post-conviction relief. He argues on appeal that his trial and appellate counsel were ineffective. Discerning no error, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/mayesg_030910.pdf


STATE OF TENNESSEE v. NICHOLAS ALLEN MONTIETH

Court: TCCA

Attorneys:

Lloyd R. Tatum, Henderson, Tennessee, for the appellant, Nicholas Allen Montieth.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Joe Van Dyke, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Nicholas Allen Montieth, was found guilty of sexual battery by an authority figure. The trial court imposed a sentence of three years as a Range One offender. The sole issue raised on appeal is whether the trial court erred by not allowing Defendant to impeach the victim with testimony of a prior inconsistent statement. Following our review of the record, we reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/montiethn_030910.pdf


STATE OF TENNESSEE v. RUSTY RHOTON

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender and Andrew J. Gibbons, Assistant Public Defender (on appeal); and Paul A. Harr (at trial), Bristol, Tennessee, attorneys for appellant, Rusty Rhoton.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Kaylin Hortenstine, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Rusty Rhoton, entered a "best interest" guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to two counts of assault, Class A misdemeanors. The trial court denied alternative sentencing and sentenced him to consecutive sentences of eleven months and twenty-nine days to be served in jail. The Defendant contends that the trial court erred in denying alternative sentencing. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/rhotonr_030910.pdf


STATE OF TENNESSEE v. CHARLES SHARP
CORRECTION


Court: TCCA

Attorneys:

Christine W. Stephens and Brett A. Schubert, Memphis, Tennessee, attorneys for the appellant, Charles Sharp.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William L. Gibbons, District Attorney General; and David Pritchard, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: SMITH

The Shelby County Grand Jury indicted Appellant, Charles Sharp, for one count of especially aggravated sexual exploitation of a minor, four counts of rape, one count of sexual battery by an authority figure, and one count of vandalism. An initial trial resulted in an acquittal for all charges except the especially aggravated sexual exploitation of a minor. At the second trial, a key witness was unavailable. Over the objection of Appellant, her redacted testimony from the first trial was read to the jury and presented as evidence. The jury convicted Appellant as charged. He was sentenced to nine years as a Range I, standard offender. On appeal, Appellant argues that his constitutional right of confrontation was violated by the State's presentation of the previous testimony of this witness, that the evidence was insufficient to support his conviction, that the trial court erred in sentencing Appellant to nine years as a Range I, standard offender, and that the trial court erred in denying probation. After a thorough review of the record, we have determined that the evidence is sufficient to sustain the verdict and that Appellant was properly sentenced. The State's failure to adequately prove that it had made a good faith effort to locate the missing witness' testimony from Appellant's first trial violated Appellant's constitutional right to confront the witness. Therefore, this case is reversed and remanded for a new trial.

http://www.tba2.org/tba_files/TCCA/2010/sharpc_CORR_030910.pdf


VINCENT MARCEL WILLIAMS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Michael L. West, Chattanooga, Tennessee, attorney for the appellant, Vincent Marcel Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; William H. Cox, III, District Attorney General; and Cameron Williams, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Vincent Marcel Williams, filed a timely petition for post-conviction relief attacking his convictions for aggravated child abuse and reckless homicide on the basis that trial and appellate counsel committed ineffective assistance. Following a full evidentiary hearing, the Hamilton County Criminal Court denied relief. In this appeal as of right, the Petitioner contends that counsel committed ineffective assistance by failing: (1) to challenge, either at trial or as an issue on appeal, the impaneling of biased jurors; (2) to argue that the Petitioner was guilty of reckless aggravated assault rather than aggravated child abuse; (3) to challenge, either at trial or as an issue on appeal, the allegedly improper comments made by the trial court during voir dire; and (4) to examine witnesses concerning the Petitioner's proposed questions relating to other possible causes and perpetrators of the victim's injuries. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/williamsv_030910.pdf


Whether an "Evaluation" of Real Property Constitutes an "Appraisal" and an "Appraisal Report"

TN Attorney General Opinions

Date: 2010-03-09

Opinion Number: 10-25

http://www.tba2.org/tba_files/AG/2010/ag_10_25.pdf

Vacancies on Local Boards of Education

TN Attorney General Opinions

Date: 2010-03-09

Opinion Number: 10-26

http://www.tba2.org/tba_files/AG/2010/ag_10_26.pdf

Fees and Regulations for Construction of Schools in Special School Districts

TN Attorney General Opinions

Date: 2010-03-09

Opinion Number: 10-27

http://www.tba2.org/tba_files/AG/2010/ag_10_27.pdf

Law Enforcement Officers Employed By Judicial District Task Forces

TN Attorney General Opinions

Date: 2010-03-09

Opinion Number: 10-28

http://www.tba2.org/tba_files/AG/2010/ag_10_28.pdf

TODAY'S NEWS

Legal News
Legislative News
Disciplinary Actions
Your Practice
TBA Member Services

Legal News
Olen Haynes to join Judicial Nominating Commission
House Speaker Kent Williams has named Olen G. Haynes, a lawyer from Washington County, to the Judicial Nominating Commission. Haynes fills the seat left vacant when Chairman David Bautista of Elizabethton stepped down.
Tennessean.com has more
Hurd to be sworn in Wednesday
Rhynette Northcutt Hurd, the newly appointed circuit court judge in the 30th Judicial District, will be officially sworn in tomorrow at 10:30 a.m., in Room 226 of the Shelby County Courthouse. Hurd was appointed by Gov. Phil Bredesen Friday to fill the vacancy created by the retirement of Judge D'Army Bailey. She will be sworn in by retired Circuit Court Judge Charles McPherson, who has been serving in Judge Bailey's court while the seat was vacant.

Immigration audits planned for area employers
Businesses in Tennessee and four other Southern states will soon be audited to make sure they are not hiring illegal workers, as part of the government's new immigration enforcement strategy. "I think most of the businesses in our area, the ones that are going to get audited, are inadequately prepared," says Chattanooga immigration attorney Terry Olsen, who is chair of the Tennessee Bar Association Immigration Law Section. The audits can have a negative impact on the economy, Olsen says, because employers may be wary of hiring workers who "seemed foreign."
The Times Free-Press reports
Judge Bell deploys to Korea
Newport General Sessions Judge John A. Bell has been deployed to Korea to serve as the Staff Judge Advocate of the 8th (Field) Army during March 4-19.
The Newport Plain Talk has details
Sasser moves up at Export-Import Bank
Former Miller & Martin attorney and TBA Leadership Law grad Gray Sasser has been appointed senior vice president for Congressional Affairs at the Export-Import Bank of the United States. Sasser, who had also served as chair of the Tennessee Democratic Party, holds a law degree from Vanderbilt University.
Read more about the appointment
More examples of why people might need a lawyer
Nashville lawyer Barbara Moss tells the public in her column today why it's important to consult a lawyer about the most basic legal transactions like marriages, divorces, separations and wills.
The Tennessean carries her column
Irony in the death chamber
An Ohio inmate scheduled to die by lethal injection earlier this week has received a seven-day reprieve because he took an overdose of pills hours before the scheduled execution.
WKRN.com carried this AP story
Legislative News
50/50 bill put off 2 weeks
The legislation that would mandate "50/50" parenting time unless a parent was found to be unfit was rolled for two weeks today. Lawmakers asked the Tennessee Bar Association to work with the Administrative Office of the Courts to try to garner more statistics on the operation of the current law and in particular the parenting plan process.
Learn more from WPLN
Bill would create foreclosure mediation pilot program
Lawmakers from Memphis are sponsoring companion bills in the state House and Senate that, among other things, would set up a foreclosure mediation program in Shelby County. The bill would create a pilot program that would authorize lenders and homeowners to try to strike a deal to let borrowers keep their homes from the auction block. It "would provide some incentives for lenders and servicers under the Tennessee Home Loan Protection Act to participate in the program," said Memphis attorney Webb Brewer. Brewer, the former director of advocacy for Memphis Area Legal Services, has started a new law practice focused almost exclusively on social justice legal issues such as urban blight and predatory lending.
Find out more in the Memphis Daily News
Bill to clarify unconstitutionality of income tax approved in committee
Even though the state constitution already says an income tax is not allowed in Tennessee, Republican Sen. Brian Kelsey of Germantown says the difficult economic times may prompt lawmakers to try to pass an income tax. So he has introduced legislation that would declare an income tax and payroll tax unconstitutional. The proposed constitutional amendment was approved 7-3 in the Senate Finance Committee today. The earliest it could go before voters is 2014.
WMC-TV has this AP story
Disciplinary Actions
Carter County lawyer suspended
On March 1, the Tennessee Supreme Court suspended the law license of Carter County lawyer Thomas E. Cowan Jr., in light of his plea of guilty to a serious crime: willful attempt to defeat or evade the payment of taxes, in violation of 26 U.S.C. 7201.
Download the AOC news release
Your Practice
Memphis firm embraces 'green' office quirks
The lights go out without warning if workers don't get up and move around every 30 minutes, and senior partners can't park in the best spaces because they're reserved for low-emission and carpool vehicles. Memphis law firm Apperson Crump moved three months ago into what developers say is Memphis's first office building with the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) gold certification. Other features include water-saving low-flow plumbing fixtures and drip irrigation for landscaping; building-wide recycling of paper, plastic bottles and aluminum cans; and sun-reflecting roof and parking lot surface.
The Commercial Appeal has the story
TBA Member Services
First Tennessee is TBA's preferred provider
First Tennessee has crafted a package of discounts to meet the specific needs of Tennessee Bar Association members.
Find savings on merchant credit services, checking and savings, financial planning and more

 
 
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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